Chhote S/O Sh. Peer Ali vs State Of Delhi
2004 Latest Caselaw 1478 Del

JUDGMENT

Madan B. Lokur, J.

1.The Petitioner is aggrieved by a judgment and order dated 29th January, 2004 passed by the learned Additional Sessions Judge finding the Appellant guilty of an offence under Section 364A read with Section 34 of the IPC and convicting him accordingly. The Appellant is also aggrieved by the sentence awarded to him of imprisonment for life and also a fine of Rs.10,000/-, in default of payment whereof the Appellant would undergo further simple imprisonment for one year.

2.On 26th December, 2001, Jan Mohammad lodged a complaint that his son Salman had gone out from the house and had not returned back. A search was made for Salman but he was not found anywhere. On the basis of this complaint, a case under Section 363 of the IPC was registered.

3.On 28th December, 2001, a relative of Jan Mohammad by the name of Iklas informed the police that another person by the name of Iliyas had informed him that Jan Mohammad should come to Bulandshehr with a ransom of Rs.1 lakh for release of the child who was said to be kept in a village in Ghaziabad (Uttar Pradesh).

4.On the basis of this information, the police organized a raiding party and managed to apprehend Iliyas who soon thereafter made a disclosure statement that Salman had been kept with some relations in Village Mansuri. The police party then raided the house of Majid and recovered Salman from his custody. Iliyas gave a statement that after handing over Salman to Ahmad Sayied and Majid, he had gone to make the demand for ransom.

5. All the three accused persons, that is, Iliyas, Ahmad Sayied and Majid were then arrested and brought to Delhi. The statement of Salman was recorded under Section 164 of the Cr.PC and the statement of the witnesses was also recorded.

6. From the statements so recorded, it appears that Salman was initially kidnapped by the Appellant-Chhotu along with one Vinod and Iliyas. On the basis of this, a supplementary challan was filed against the Appellant-Chhotu as well as Vinod. Since they were absconding, a trial was initially held in respect of Iliyas, Ahmed Sayied and Majid. After trial, these three accused were acquitted. Accused Vinod was tried separately and he was also acquitted. As far as the Appellant-Chhotu is concerned, he as also tried independently and found guilty and convicted, as mentioned above.

7. Learned counsel for the Appellant has made only one submission before us, on which he must succeed. It was pointed out by him that in the trial concerning Iliyas, Ahmad Sayied and Majid, the learned Additional District Judge, in his judgment and order dated 14th August, 2002 had observed that Salman had turned hostile. Salman had denied that Iliyas had enticed him and thereafter kidnapped him. In fact, he stated that he had seen the accused persons for the first time in Court. Paragraph 7 of the judgment dated 14th August, 2002 passed by the learned Additional District Judge is of considerable significance and this reads as follows: -

''7. In order to prove that Salman was kidnapped by accused Ilyas, prosecution has examined Salman as PW-2. His version is that he does not know any of the accused persons facing trial in this Court. He has not been able to tell as to who had kidnapped him or where he was conveyed or concealed. So far as involvement of accused persons is concerned, his version is that he had seen accused for the first time in the court. This witness was also declared hostile by the prosecution and was cross examined b Addl. PP in which he has denied that accused Ilyas had kidnapped him or that he had demanded Rs. one lack as ransom from his father inconsideration of his release failing which he would be killed. Though, he has admitted that he gave statement Ex.PW2/A b fore the Magistrate, yet he denied that he has stated that accused Ilyas had kidnapped him for ransom of Rs. one lack. Even he has admitted that he was apprehended by the police along with accused from village Mansoori where his father had taken the polic . However, he has denied that accused Ilyas had enticed him and thereafter had kidnapped him.''

8. Similarly, in the judgment and order pertaining to Vinod, the same learned Additional District Judge observed in his judgment dated 19th September, 2003 that Salman did not know Vinod prior to the incident and that he had seen him only on the date of the alleged incident and that no test identification of the accused was held. This was in the context of the suggestion that Vinod had worked with Jan Mohammad, father of Salman. Even otherwise, the learned Additional District Judge held that no reliance could be placed on the testimony of the Salman because he stated on oath that he did not know anything and had forgotten everything.

9. Since on two earlier occasions Salman had been disbelieved, it was submitted that there was no reason why he should now be believed for holding the Appellant-Chhotu guilty of the alleged offence.

10. The learned Additional District Judge has convicted the Appellant-Chhotu on the basis of Salman having identified him in Court, even though he had named him as Vinod. According to the learned Judge, the wrong name assigned to the Appellant was not of much significance.

11. The learned Additional District Judge also relied upon the testimony of Jan Mohammad who confirmed the kidnapping as well as the demand for ransom by the Appellant-Chhotu and Vinod. It was held that he had confirmed the statement of Salman that he was kidnapped by the Appellant-Chhotu and Vinod. This was despite the fact that Jan Mohammad had resoled from his statement about the recovery of Salman in his presence and that Jan Mohammad did not want to speak in Court because he was under some pressure

12. We are of the view that this evidence against the Appellant-Chhotu is rather thin. There is absolutely no reason to believe Salman particularly when he has been disbelieved on two earlier occasions by the Court and the State has not challenged the two orders passed earlier whereby Iliyas, Ahmad Sayied and Majid were acquitted and later even Vinod was acquitted. If there was no involvement of any of these four persons in the kidnapping of Salman, surely it cannot be said that the Appellant-Chhotu a one was involved in the kidnapping because it was nobody's case that he alone had kidnapped Salman and made a demand for ransom.

13. In so far as the testimony of Jan Mohammad is concerned, in the prosecution concerning Iliyas, Ahmad Sayied and Majid, he had turned hostile. He denied having lodged any report or informing the police that Iliyas had informed him about the kidnappin g of Salman. In fact, he denied the entire incident and subsequent events including the recovery of Salman from the three accused.

14. Even in the prosecution against Vinod, Jan Mohammad had turned hostile. He did not support the story of the prosecution. Although he admitted that Salman was kidnapped by some unknown person, that a report had been lodged in this regard and that Sal man was recovered from Village Mansuri in his presence, he, however, denied the involvement of Iliyas, Ahmad Sayied and Majid or even Vinod. Although he was cross-examined by the learned Additional Public Prosecutor, nothing came out in his testimony, which could be said to be in favor of the prosecution. 15.Under these circumstances, we are of the view that it would be very difficult to uphold the conviction of the Appellant-Chhotu. There is a complete lack of reliable evidence either from Jan Mohammad or from Salman on the basis of which it could be said that the prosecution case of kidnapping of Salman by the Appellant-Chhotu was made out beyond a shadow of doubt.

16. Under the circumstances, we allow the appeal, set aside the orders of conviction and acquit the Appellant of the charges framed against him. He shall be set free unless required in any other case.